Page:United States Reports, Volume 1.djvu/143

132 

1785

caption, are fince the Statue of frauds, which fays that the lien fhall be from the inrollment.

I do not find that there have been any legal decifions upon point in Pennʃylvania ;  but a general opinion has taken place, which has been carried into univerfal practice, that recognizances  not here  binds lands, until they are proceeded upon to judgment  againft the bail. Hence it is, that, whenever a purchafe, or mortage, is made, the examination at the offices, and the certificates which are given by the prothonotaries, are only of the judgments in force againft the feller, or mortgagor, and not concerning recognizances.  The practice has, indeed, been fo general, that ll the conveyancers and Lawyers, for a long courfe of years, have, on fuch occafions, confined their enquiries to that circumftance alone ; and many titles muft, therefore, depend upon it, which would be fhaken  it a contrary conftruction fhould now be adopted.

Whether this opinion took its rife from the different fituation in which the lands of this country are from thofe of England, and from their being liable to be ʃold for debts ;or from the filence of the Legiflature upon the fubject ; or from other caufe, we can but conjecture. It is remarkable, however, that when our act for the prevention of frauds were made, in the year 1772, although the Legiflature copied the claufe n the Engliʃh ftatute relating to judgments, and was minutely exact as to the time from which they fhould bind hands, yet they totally omitted the claufe relating to recognizances. This filence, it is true, is no abrogation of a law ; but it looks as if the Affembly had taken up the popular idea, that recognizances did not bind till judgments were obtained upon them, and, therefore, they thought that no particular provifion was in that refpect neceffary. Upon what principle, indeed, could they elfe have been fo careful of innocent purchafers in the one cafe, and not in the other?

We may alfo properly take into view, that, long before the paffing this act for the prevention of frauds, the relative dignity of judgment debts, and of thofe upon recognizance, had been fettlled by a law, directing the order of paying the debts of perfons deceafed. That is—1ft. Phyfic and funeral expences.— 2d. Debts and duties to the Queen.—3d. Debts due to the proprietor and governor.—4th. Judgments. —5th. Debts due by recognizances.—6th. Rents &c. If however, it fhould be faid, that this is only a direction in what order debts fhall be paid, without any refpect to the binding nature of judgments and recognizances, it may be anfwered, that, from the fituation of lands in this country, that confederation muft neceffarily be included. Here, as I have already obferved, lands are chattels for the payment of debts : they are chattels too in the hands of executors ; and all writs of ''Fi. ƒa'' direct the levy accordingly to be made, of the goods and chattels of the deceafed, in the hands of the executor. If, then,, in fuch a cafe, two writs are executed upon lands, founded one upon a prior recognizance, and the other on a judgment to the recognizance, but prior